116 Cal. 81 | Cal. | 1897
The plaintiff brought this action for the foreclosure of a chattel mortgage upon two thousand three hundred and thirty sheep, that had been executed to its assignors. January 18, 1894, by the defendants,
In Shoobert v. De Motta, 112 Cal. 215, 53 Am. St. Rep. 207, it was held that in this state the lien of a chattel mortgage upon domestic animals does not cover the increase of the animals, unless expressly mentioned therein. The provision in section 2955 of the Civil Code, authorizing the execution of a chattel mortgage upon “sheep, and the increase thereof,” does not extend the lien of a mortgage upon “sheep” to the “increase” of the sheep, but implies that unless the increase is covered by the terms of the mortgage, it is not included therein. In that case it was also said: “If the mortgagor retains the possession of the mortgaged property he is at liberty to deal with and use it as its owner, and whatever income or profit may be derived from such use belongs to him, and not to the mortgagee.” In Simpson v. Ferguson, 112 Cal. 180, 53 Am. St. Rep. 201, it had been held that the mortgagor of real property was entitled to whatever crops might grow upon the mortgaged property prior to a foreclosure, and it was also said in Shoobert v. De Motta, supra: “If in the case of sheep, the use to which the mortgagor puts the ewes is for breeding lambs, there can be no sufficient reason given why the Iambs that are dropped by the ewes should belong to the mortgagee any more than the wool which is sheared from their backs.” The present case presents a question which was not involved or decided in that case, i. e., whether the lien of the mortgage in-
The superior court erred in holding that the wool sheared from the sheep and their increase was covered by the-mortgage and subject to its lien, and it is directed to modify its judgment in accordance with this opinion.
Van Fleet, J., and Garoutte, J., concurred.
Hearing in Bank denied.